BREAKING DOWN THE BARRIERS:
INTER-NATIONAL COOPERATION IN COMBATING TRANSNATIONAL
CRIME
KIMBERLY PROST1
Note: Any views expressed are those of
the author and are not attributable to any government or
organization.
I INTRODUCTION
With advances in technology, and the ease of global travel, the
world we live in has become, in many ways, as Canadian author
Marshall McLuhan predicted "a global village". This has had a
dramatic impact on many aspects of life and society and law
enforcement is no exception.
The technological explosion and the growth of transnational
organized crime and the response of the international community to
it, has created many new challenges, not the least of which is the
impact on the jobs of law enforcement authorities.
In a 1989 case, United States of America v. Cotroni, the
Supreme Court of Canada, made the following statement:
The investigation, prosecution and
suppression of crime for the protection of the citizen and the
maintenance of peace and public order is an important goal of all
organized societies. The pursuit of that goal cannot realistically
be confined within national boundaries. That has long been the
case, but it is increasingly evident today. 2
The challenge for law enforcement authorities in every nation is
that sovereignty, a fundamental principle which grounds the
relations of states, is also a major tool in the armoury of the
criminal element in our societies. Criminals depend heavily upon
the barriers of sovereignty to shield themselves and evidence of
their crimes from detection. Organizations which orchestrate
transnational crime and which then disperse and conceal the
proceeds of their illicit activities the world over, have no regard
for national borders. In fact, by structuring their organisations
to span borders, they are better able to protect their interests
and organisations. They are positioned to take advantage of the
differences between legal systems, the clash of bureaucracies, the
protection of sovereignty, and, at many times, the complete
incapacity of nations to work together to overcome their
differences.
International cooperation in criminal matters, means such as
mutual assistance and extradition are instruments which can be used
to overcome the barriers of sovereignty and allow the international
community to "fight back". Both extradition and mutual legal
assistance are 'about' countries building bridges to overcome the
differences in their legal systems and assisting each other in law
enforcement matters.
The result is that the rare case where assistance from another
country was necessary to gather evidence or locate and return an
accused is no longer rare. More and more successful prosecution,
particularly of drug economic Crime and money laundering cases, is
dependent upon the assistance and cooperation of other states.
International cooperation in criminal matters has on a practical
level, come of age.
The purpose of this paper is to provide a brief overview of the
world of international cooperation as it relates to prosecutors and
other law enforcement authorities. The intent is to give a brief
"snapshot" of where we have been, where we are and the future
challenges that we face.
International cooperation in criminal matters encompasses many
measures including extradition, mutual assistance, transfer of
sentenced prisoners, transfer of proceedings, and cooperation in
the restraint and forfeiture of proceeds of crime.
This paper will focus on three of the most common aspects of
international cooperation, those which most directly impact on the
work of prosecutors - extradition, mutual assistance and
cooperation in the restraint and forfeiture of proceeds of
crime.
II PURSUING THE SUSPECT -
EXTRADITION
1) General
Extradition is the surrender by one state, at the request of
another, of a person who is accused or has been convicted of a
crime committed within the jurisdiction of the requesting state.3
Extradition is the best known and certainly the oldest component
of international cooperation in criminal matters. It is a concept
which originated in ancient societies such as the Egyptian,
Chinese, Chaldean, and Assyro-Babylonian.4 As is often noted, the
first recorded extradition treaty dates from circa 1280 B.C. when
Ramses II, Pharaoh of Egypt, signed a peace treaty with the
Hittites which expressly provided for the return of persons sought
by each sovereign, who had taken refuge on the other's territory.5
While extradition has long been a component of the relations
between states, have its role and purpose has been altered
radically through the ages. In ancient times and in fact up until
the early 1800's, extradition was directed almost exclusively to
the return of fugitives sought for political or religious offences.
Extradition was viewed as a means to protect the political order of
states.
In modern times, particularly the last hundred years, the focus
of extradition has changed completely to common serious crime,
which in many ways has replaced political offences as a major
challenge to the stability of nations. In fact, quite ironically,
political offences, the original focus of extradition are now
generally excluded from extradition regimes.
Despite its long history and ancient roots, the practice of
extradition has seen its most radical development in the last 50
years. Driven by the intersection of amazing advancements in global
travel and the rise of criminality spanning borders, extradition,
particularly between countries with vastly different legal systems,
has changed substantially. On the eve of the millennium, the
further enhancement of extradition relations and practices is a
priority, for many countries and a number of international
organisations.6
2) The basis for extradition
The first issue a prosecutor or investigating judge faces when a
suspected or accused person is one of their cases or dossiers is
located in a foreign state, is whether it is even possible to have
that person extradited to face trial.
While historically controversial, it is the generally accepted
view today, at international law, that there is neither a legal nor
moral duty upon states to extradite, in the absence of a specific
binding agreement to that effect.7 Because of this principle, many
states, in particular those of a common law tradition will not
extradite in the absence of treaty. While civil law countries are
not generally as restricted in principle to treaty, based
extradition, they too have entered into such arrangements,
particularly with states whose domestic law mandated such a
relationship.
The result is that historically and even today, most countries
have at least some bilateral extradition treaties and this remains
the predominant and still, for many states, the exclusive basis for
extradition.8 However, considering the
ever-expanding list of nations, it is safe to say that the number
of bilateral extradition treaties is clearly insufficient to
address the growing need for extradition relations. And it is this
reality, which has led to a trend toward alternative bases for
extradition. The following is a brief overview of the network of
instruments that ground modern extradition, as well as alternative
approaches to treaty based relations.
a) Bilateral extradition
treaties
As noted, many states have traditionally based their extradition
relationships on bilateral treaties. Even today, there continues to
exist a vast web of bilateral extradition instruments particularly
flowing from the commitment of the United Kingdom, other
Commonwealth States and the United States to treaty-based
relations.
By example, in the 1800's, the United Kingdom negotiated several
extradition treaties which were applicable to many of its realms
and territories. For many years, even as those colonies attained
independence, they continued to rely on the old Imperial treaties
for extradition relationships, with many states. Some still do so
today. Similarly, the United States has long required a treaty for
extradition and thus has developed a broad network of bilateral
instruments to govern extradition relations.
While other legal systems may not have evidenced the same strong
commitment to bilateral treaty, relations, many non - common law
states have a number of bilateral extradition treaties with other
states. The result is that bilateral treaties still dominate
extradition practice, although there is an increasing tendency for
states to consider alternatives because of the practical and
political realities, and the problems of negotiating inPidual
instruments to govern extradition relations with an ever-expanding
world community.
b) Regional and other agreements
or arrangements
With the inherent difficulties of negotiating bilateral
instruments and yet the clear advantages of having some form of
instrument upon which to ground extradition relations, there has
been increasing resort, in the second half of the twentieth
century, to regional agreements and schemes for extradition. These
have become a popular alternative for many states.
While some arrangements have historic routes, for example,
rendition amongst British possessions, such agreements and schemes
saw a particular period of growth in the 1950's and 60's. Generally
the common bond for these instruments is the geographical location
of the participant states but there are also those which are
dependent upon common legal traditions. In some instances they
reflect both geography and common legal tradition.
The following is a brief survey of existing regional agreements
and schemes:
i) The European Convention on Extradition9
Perhaps the best success story in extradition, the Convention
signed December 13,1957, in force April 18, 1960, has served as an
important instrument for harmonization extradition relations and
practice amongst European states. The Convention serves as an
actual basis for extradition and is the most commonly used
extradition instrument within Europe. As one of the first
multilateral instruments for extradition, it reflects many of the
fundamental principles now recognised as general concepts adhered
to by most states in extradition practice.
ii) Commonwealth Scheme10
Commonwealth states, from the legal tradition of the common law,
have adopted an alternate approach in the form of the Commonwealth
Scheme for Rendition. The scheme has its roots in the system for
rendition between British possessions that was governed originally
by an 1843 Imperial statute11 and subsequently, the 1881 Fugitive
Offenders Act.12
The scheme was adopted at the 1966 Meeting of Commonwealth Law
Ministers, with subsequent amendments in 1986 and 1990. Unlike the
European Convention, the scheme is not an actual instrument for
rendition. Rather it is a set of agreed recommendations, intended
to guide Commonwealth governments in regulating their rendition
relations with other Commonwealth states. Generally the scheme will
be implemented within the relevant states through legislation and
administrative action. The goal of the scheme is not to prescribe
uniform legislation but rather to encourage the adoption of
national legislation and practices amongst member states which will
afford a high level of cooperation.13
iii) The Inter - American Conventions
There is a long and complex history of inter- American
extradition conventions. Beginning in 1899 with the Montevideo
convention, subsequent conventions were adopted in 1911 and 1928.
In 1933 the Second Montevideo treaty was adopted, which was
subsequently revised in 1940 and 1957.14 On February 7, 1973
the Organization of American States proposed a new Draft Inter-
American Convention on Extradition.
iv) The Benelux Extradition Convention15
Adopted by Belgium, Luxembourg and the Netherlands on June
27,1962 the Convention on Extradition and Judicial Assistance in
Penal Matters is an excellent example of how states which are
closely related and limited in number will tend to develop more
permissive relations with respect to extradition. While mirroring
in many, respects the provisions of the European Convention, some
of the substantive articles in this Convention clearly reflect
close ties of the state parties.16
v) The Nordic States Scheme17
In 1962, Denmark, Finland, Iceland, Norway, and Sweden adopted
the Nordic treaty for extradition. Similar to the Benelux agreement
it reflects the close relations of the member states. Of particular
note in the agreement is the recognition of "juridical equality "
of these states' citizens.
v) The Arab League Extradition Agreement
The Convention was approved by the Council of the League of Arab
States on September 14,1952 and was signed by Egypt, Iraq, Jordan,
Lebanon, Saudi Arabia, and Syria. However only Egypt, Jordan and
Saudi Arabia have ratified it and thus it has been in force since
August 24,1958 but only in relation to these three states. The
Convention, while a "stand alone" basis for extradition,
contemplates the existence of bilateral arrangements between state
parties.
vii) Africa
In 1961, twelve of France's fourteen former Equatorial and West
African colonies formed the Union Africaine et Malagache. On
September 12 of that year these states signed a convention on
judicial cooperation at Tananarive.18
On August 6,1994 sixteen member states of the Economic Community
of West African States signed a convention on extradition which
will enter into force upon ratification of nine signatory
states.
c) Multilateral
conventions
In the mid 20th century, in the face of crimes with effects of
international proportion, a new approach to extradition developed
in the form of multilateral conventions, directed at particular
crimes, with articles relating to extradition.
The earliest of such conventions, the Geneva
Conventions19, which provide for
basic principles of humanitarian law in the context of armed
conflict, placed an obligation on states to either prosecute or
extradite alleged offenders, applying the principle of aut
dedere aut judicare. Thus state parties to the convention are
obligated to bring alleged offenders before their courts or hand
them over to be tried by another party.
The subsequent Genocide Convention20 while
imposing an obligation on a territorial state to Prosecute
allegations of genocide, does not impose the aut dedere aut
judicare principle. However, Article VII of the Convention does
provide that genocide and other acts covered by the Convention
shall not be considered "political offences" for the purpose of
extradition.
The 1971 Hague Convention for the Suppression of the Unlawful
Seizure of Aircraft21, was the first of a
series of conventions, often described as "anti terrorism"
agreements, which contained detailed articles on extradition. The
convention and several others which have followed obligate states
to take jurisdiction over the relevant convention offences and in
the face of allegations, extradite the person or submit the matter
to competent authorities for the purpose of prosecution. In
addition the Convention provides:
- that the convention offences shall be deemed
to be included as extraditable offences in any treaty existing
between Contracting states;
- if extradition is conditional on treaty and
no treaty exists between two contracting parties, the parties
should consider the Convention as a treaty, for extradition
purposes; and
- if extradition is not conditional on treaty,
the parties should consider the Convention offences extraditable.22
The advent of these multilateral conventions has meant an
expansion of the base for extradition as between many states, at
least with respect to these particular offences.
The coming into force of the 1988 United Nations Convention
against Illicit Traffic in Narcotic Drugs and psychotropic
Substances23 (1988 Drug
Convention) brought a significant advancement in extradition
with respect to drug trafficking and proceeds of drug trafficking
offences. Article 6 of the convention is dedicated to extradition
and, inter alia, imposes a prosecute or extradite obligation on
states and mirrors the deeming provisions found in the earlier
"anti-terrorism" conventions. With now over 130 state parties to
this Convention, there exists an extensive basis for extradition in
such matters.
d) National legislation
The negotiation of bilateral, regional and multilateral treaties
is a time consuming and resource intensive exercise. As well, it is
simply unrealistic for any state to have a complete set of
extradition instruments applicable to every nation in the world.
For that reason, increasingly countries are considering and
adopting an alternative approach; extradition without treaty.
Most commonly, such extradition is based on domestic
legislation. There are some countries, Japan being an example,
which adopt this as almost the exclusive approach to extradition,
extraditing without treaty, on the basis of national legislation
which imposes essentially a condition of reciprocity. Other
countries have adopted a blended system. For example, while in
Canada an extradition treaty, is generally a pre-requisite to
extradition, the Extradition Act permits extradition,
without treaty where the requesting country has been designated
under its legislation prior to the commission of the alleged
offence for which extradition is sought. In addition, Canada has
always by virtue of its Fugitive Offenders Act, rendited to
Commonwealth states which recognize the Queen as head of state,
without necessity for treaty.24
The new extradition legislation in the United Kingdom
contemplates extradition on the basis of existing bilateral treaty,
general arrangement (new bilateral or multilateral treaties e.g.
the European convention), specific arrangements (case specific, ad
hoc arrangements) and designation of Commonwealth countries.25
While approaches and models vary, the concept is essentially the
same. One of the central advantages of this approach to extradition
is that it provides for a broader base for extradition, placing
countries in a much better position to respond to the particular
situations that may arise, where extradition is a necessity. It is
interesting to note that the United Nations expert working group
which recently considered extradition, recommended that countries
consider the adoption of extradition regimes which allow for
alternatives base for extradition to permit maximum flexibility.26
e) United Nations Model Treaty, on
Extradition
On the recommendation of the Eighth Congress, in 1990 the United
Nations General Assembly adopted the Model Treaty on Extradition.27 While
it is not an actual instrument for extradition, it is an important
document which can be used by states in the development of
bilateral or multilateral extradition instruments. The Model, along
with the manual28 prepared as a guide for it, provide
a detailed outline of the provisions of an extradition treaty and
how best to implement the same.
f) Conclusion
While there is much discussion and debate in the international
community about the benefits and drawbacks of these different
approaches to grounding extradition, the good news for prosecutors
and other law enforcement practitioners is that there are simply
more possibilities. Today, it is more likely that a prosecutor will
find some basis for extradition, than existed 15 or 20 years ago.
In that simple fact, there is progress.
3) Extraditable offences
The other area of extradition which has seen considerable
progress is the extension of the application of extradition
treaties, through the expanded definition and process for
determination of "extraditable offences". The progress has been
twofold.
a) Non - List approach
Most extradition treaties developed in the late 1800's to early
- mid 1900's, defined extradition crimes by reference to a list of
offences. The conduct revolved had to be a crime in both states,
which constituted one of the offences listed in the relevant
treaty. The problems with that approach are legendary. New crimes
would develop and the treaties, generally stagnant for many years,
would not cover them. Terminology would change making it difficult
to bring the alleged offences within the treaty list.
The "new" approach to extradition instruments, which is now
widely accepted in the international community, eliminates the list
approach and substitutes a conduct and penalty test i.e. the
conduct involved must constitute an offence punishable in both
states, by some prescribed period of incarceration, as defined by
the two states.
For prosecutors, who have struggled to bring criminal conduct
within antiquated lists, this is a welcome relief.
b) Dual Criminality
The second development which parallels the first, is the
employment of a relaxed test for dual criminality. The concept of
dual criminality is a fundamental aspect of modern extradition law.
For extradition to be possible the act in question must be a crime
in both the requesting and requested states. While a seemingly
simple requirement, in practice, establishing dual criminality can
prove to be one of the most challenging issues in an extradition
case. The problems flow from the technical differences in how
states define, name and prove criminal offences. For example, what
may be called theft in one state, may be larceny in another. While
the conduct of the alleged offender may include all of the elements
of fraud, as it is defined in both states, the definition of the
offences might differ.
The result is that extradition cases have failed because of a
technical approach to dual criminality. However, the modern test
for dual criminality, incorporated in many extradition treaties and
instruments, focuses not on technical terms or definitions but on
the substantive underlying conduct.29 Thus, the test is whether the
conduct alleged against the fugitive would constitute a criminal
offence in the requested state, regardless of whether the offences
in the two states carry a different name or have different elements
to them. This development has greatly simplified and improved
extradition practices and constitutes an excellent example of
effectively, bridging the differences between legal systems.
4) Practical issues in extradition for prosecutors
The practice of extradition is replete with problems, from the
simple question of proper channels of communication, to the complex
question of the proper role of political offence in modern day
extradition. It is not possible to review this myriad of issues in
a global overview of international cooperation.
Instead, it is perhaps most useful to focus on two issues which
most often impact on the practice of extradition from a prosecutor
or investigating judge's perspective. I would identify, those
as:
- evidentiary requirements; and
- the non- extradition of nationals.
a) Evidentiary requirements
Any criminal law authority seeking the extradition of an accused
person for trial, after concluding that there is a basic
extradition relationship between the states involved, will face the
fundamental question of what material must be provided to the
foreign state in support of the request.
While a seemingly simplistic question, this issue has been and
remains a critical problem in extradition, particularly,
extradition as between civil and common law countries.
For civil law states, the issuance of a warrant of arrest within
a requesting state, evidences that a judicial authority, within
that state, has determined that there is sufficient evidence in the
case. On that basis, the authorities in the requested state should
be able to accept and rely on that determination and not look
behind it to reassess the underlying basis of the decision.
Traditionally, common law states have required, in addition to
the warrant, the submission of evidence by the foreign state,
sufficient to meet a prescribed domestic standard. Many such states
have also demanded that the evidence be adduced in a form
consistent with the law of the requested state, before extradition
will be granted.
Meeting those demands for evidence often proves to be one of the
greatest challenges in the extradition process. The problem is
simple, the solution is not. When evidence must be adduced to meet
an unknown standard, in a completely foreign format, it can prove
to be an insurmountable hurdle to extradition. To meet this burden
the requesting authorities are forced to generate an entirely
separate package of evidence, that they would not normally produce,
which cannot be used in any ultimate domestic trial process,
against the particular accused. For the investigating magistrate or
prosecutor in a non -- common law state, the requirement for
evidence is unquestionably the major challenge in pursuing the
extradition of a suspect.
Historically, the result has been that many fugitives have
escaped justice or found safe haven because it was impossible for
countries to generate the level of material required, in the form
sought. And the problem is not solely an irritant as between
systems of different legal tradition, but can arise between
countries with the same general traditions but differing rules of
evidence and differing approaches to extradition. It is no
understatement to identify evidence as the most significant issue
for prosecutors and in many instances the most significant issue
for the extradition relations between many states.
Fortunately, much progress has been made in this area. Several
common law countries have eliminated the requirement for evidence
in prescribed circumstances.30 Others have adopted a lower
threshold of proof that must be met and will accept evidence
adduced in a summary form, without requiring that it meet the
normal evidentiary standards of the requested state.31 At
the same time, there remain a number of common law states that have
yet to modify their process.
To the extent that there remain states which require the
submission of evidence, in a form admissible under domestic law,
one of the central challenges in extradition is to develop ways and
means of reducing the detrimental effect of evidentiary
requirements. One critical component of the solution is enhanced
communication between the relevant authorities in the different
states that will increase understanding and knowledge about the
demands of Perse legal systems. Undoubtedly, in this area the
International Association of Prosecutors (IAP) can play an
important role.
b) Non-extradition of
nationals
In many states, particularly of civil law tradition, by
constitutional, law or practice, the extradition of nations is
prohibited. In most instances, countries which do not extradite
nationals, will have domestic jurisdiction to prosecute nationals
for offences committed in the territory of a foreign state.
Thus, many extradition treaties reflect the principle that,
where extradition is refused on the basis of nationality, the case
should be referred to competent authorities in the requested state
with a view to prosecution.32 These articles reflect the aut
dedere aut judicare principle and are intended to
ensure that a criminal will not escape and are intended to ensure
that a criminal will not escape justice and find safe haven on the
basis of nationality.
However, it is increasingly evident, that domestic prosecution
of offences committed outside the country is a process replete with
problems. The following description is taken from the report of the
United Nations expert working group on extradition:
"It was noted
that the use of the principle aut dedere aut judicare would
in theory be an alternative to the extradition of nationals and had
on some occasions proved effective. There were, however, several
significant practical problems in its application, including the
low priority assigned to such prosecutions by overburdened
requested States. The difficulty and costs of obtaining evidence
from the requesting State, and the serious burdens imposed by such
trials on the victims, witnesses and other persons, were cited as
examples. These problems significantly impeded the effectiveness of
this alternative to extradition." 33
Because of the litany, of practical problems, it is no longer
possible for states to ignore the growing problems associated to
the non - extradition of nationals.
And this reality has led some countries to critically examine
their extradition practice in relation to nationals. Short of
abolishing the prohibition, other alternatives are being developed.
One encouraging example can be found in the Treaty on Extradition
between the Netherlands and the United States. In this treaty, both
parties have agreed to the extradition of nationals provided that
the two states are also bound by a prisoner transfer treaty, which
would allow for the return of the person for service of any
sentence imposed. Such an approach and variations thereof"34 have
been recommended in various international fora.35
However, it is not realistic to expect dramatic change in
domestic policies on the issue of non-extradition of nationals
overnight. In many instances, the principles are deeply entrenched
and in some countries, are constitutionally enshrined. Thus,
practitioners will continue to face situations where the
extradition of nationals will not be possible. For those cases,
there are many challenges for prosecutors, who wish to see the
alleged offender brought before a court, for an effective trial.
Initially, the prosecutor in the requesting state will have to make
a decision whether to press for prosecution in the foreign state or
await an opportunity for circumstances where extradition might be
possible (e.g. if the fugitive travels to another state). If
prosecution is to be pursued in the foreign state, than prosecutors
in both Jurisdictions will have to consider how best to ensure the
transmission of evidence to the prosecuting state. And as long as
the non- extradition of nationals remains a reality, it will be
critical that prosecutors meet the challenges in these cases. For
without solutions that bring the fugitives to justice in some
forum, safe haven for nationals will be the reality.
III PURSUING TI-IE EVIDENCE - MUTUAL
ASSISTANCE IN CRIMINAL MATTERS
1) General
Every justice system in the world requires some form of evidence
for use in the adjudication of criminal culpability for an alleged
offence. Whatever the system for determining guilt or innocence,
whether it be free evaluation of all relevant information or
consideration of only that which meets specified rules of
accessibility, the criminal justice process functions on the basis
of an assessment of evidence. Evidence than is the focus point for
any and all prosecutors. It is what they need to do their jobs.
Mutual assistance36 in criminal matters is a process by
which states seek and provide assistance in gathering evidence for
use in criminal cases.
In earlier times, most prosecutors would go through their entire
career, without ever having to obtain evidence from outside
national borders.
Last year, there were literally thousands of requests
transmitted between states seeking assistance in evidence
gathering. In today's world, most prosecutors will be hard pressed
not to have at least one case where they will have to obtain
evidence from a foreign state, for use in a prosecution. And it is
for that reason, that mutual assistance has become the fastest
growing business in the criminal Justice field.
2) Background
Mutual assistance as a means of cooperation has advanced most
significantly over the last decade.
Countries have long assisted each other in gathering information
and evidence for criminal investigations and prosecutions. There
are well established police to police channels through which much
essential information has been and continues to be shared. These
channels range from direct relationships between police officers
and police forces, to the posting of police liaison personnel in
foreign states, to the auspices of Interpol. All of these measures
remain critical to cooperation in evidence gathering and have not
been replaced by the more formal process of mutual assistance.
But the reality is that there are types of assistance which
cannot be provided between states, through police or informal
channels. The most obvious is where the type of assistance sought
will require resort to the legal process within the requested
state; where some type of judicial order or compulsory measure must
be applied to produce the desired information or evidence, in an
acceptable form.
For example, where a country is seeking the production of bank
records or the search of a residence, there is need for a judicial
process through which the appropriate authorization can be
obtained.
For many years, states were required to rely entirely upon
traditional letters rogatory, submitted through diplomatic
channels, to gain access to such evidence. However, in our modern
age, this method was insufficient to meet the growing demand for
speedy and effective assistance, in evidence gathering.
Letters rogatory did not provide for the scope of assistance
required, nor were they efficient enough to allow for the
production of the evidence, within a reasonable period of time. As
well, because of fundamental differences between investigative
authorities and process in civil and common law states, letters
rogatory were in many instances ineffective as between states of a
different legal tradition.
In the second half of the twentieth century, the need for
alternative methods of evidentiary assistance was apparent. The
identifiable gaps, combined with the rise of terrorism and
transnational organized crime, combined to spur the development of
mutual assistance in criminal matters, a new concept for
cooperation in evidence gathering. Mutual assistance was "an idea
whose time had come".
3) The features of mutual assistance
Mutual assistance in criminal matters is a mechanism of
cooperation which allows for a wide range of assistance between
states in the production of evidence, in a direct and efficient
manner. Generally rendered on the basis of bilateral treaty or
agreement or multilateral convention37 mutual assistance
provides a means for one state to obtain evidence from another
state for use in a criminal investigation/prosecution.
One of the major advantages of this form of cooperation is that
it covers a broad range of assistance including inter alia, taking
evidence or statements of persons, search and seizure, the
provision of documents or evidentiary items, the service of
documents, and the temporary transfer of persons to assist an
investigation or appear as a witness. As well, assistance can be
rendered at any state of a criminal process from investigation to
appeal.
Generally mutual assistance can be rendered directly between
competent authorities in the two states, often Justice Ministries.
This is one of the features of mutual assistance which makes it an
effective and efficient mechanism of cooperation; the direct
channelling of requests without necessity, for use of diplomatic or
other channels.
4) The instruments of cooperation
Over the last decade great strides have been made in the
development of a framework of instruments for the rendering of
assistance.
The first significant instrument for mutual assistance was the
European Convention on Mutual Assistance in Criminal Matters,
developed by the Council of Europe, entered into on April 20,1959,
in force June 12,1962.38 It was an important achievement of
its time in its recognition of the necessity for specific
instruments for cooperation in evidence gathering. However, like
all new instruments, it had limitations. Perhaps the most notable
in this instance was the Convention was designed to operate amongst
states of like legal tradition, the civil law states of Europe, and
it therefore did not address perhaps the most significant challenge
to effective mutual assistance, bridging the differences between
legal systems.
Similarly, within the Commonwealth, in 1986 Law Ministers in
Harare, Zimbabwe,39 adopted a scheme for mutual
assistance. It is a non - treaty based scheme which depends upon
states enacting domestic legislation to permit the rendering of
assistance in criminal matters. However, it as well is based on the
commonality of systems.
In between the creation of these two multilateral instruments of
cooperation, inPidual states began to develop treaties on a
bilateral basis, to allow for the provision of assistance and most
notably, the provision of assistance between states of different
legal traditions. The oft cited example of the first break through
instrument is the treaty between the United States and Switzerland
which came into force in January 1977.40 Since that time
there has developed a network of bilateral instruments between
states of similar or different legal tradition. Those agreements
are further supplemented by domestic legislation within some states
which allows for assistance to be rendered on the basis of
reciprocity, designation or administrative arrangement.
Similar to extradition there has also been an increasing
development of regional agreements for mutual assistance. Some
recent examples include the Inter - American Convention on
Mutual Legal Assistance in Criminal Matters41", and
the Economic Community of West African States Convention on
Mutual Assistance in Criminal Matters.42
Two other significant advancements in the field of mutual
assistance came with the adoption by the General Assembly of the
United Nations of the Model Treaty on Mutual Assistance43 and the coming into force of
the 1988 Drug Convention44 which contains a "stand
alone" article on mutual legal assistance. Under this article state
parties to the Convention can seek and provide a broad range of
assistance in evidence gathering.
The Model Treaty provided an excellent guide for nations wishing
to develop mutual assistance treaties and the Convention provided a
multilateral instrument for assistance; an instrument which now has
over 130 signatory states.
The inclusion of a "stand alone" provision on mutual assistance
within the Convention, in addition to its practical effect, also
constituted recognition of the integral role mutual assistance
plays in combating crime, in this instance drug trafficking. That
message has been reinforced with respect to transnational organised
crime generally, within the international community in various
statements arising from international fora.45
5) Practical issues for
prosecutors
a) Effective
implementation
The framework of international instruments for the rendering of
assistance, while still in need of expansion and improvement, is an
impressive one.
However, no matter how complete the network of agreements may be
and regardless of how well - crafted the instruments of cooperation
are, none of that is of much value, if it is not possible to
present a request for assistance and receive evidence in an
acceptable form, in an effective and timely fashion.
Unfortunately, in a great number of cases, despite the existence
of an applicable instrument, evidence is not forthcoming; it
arrives in a form such that it is not useful to requesting
authorities; or it is provided so late as to be of little practical
value.
The critical problem is lack of or inadequate programs and
procedures for effective implementation of mutual assistance
programs and the provision of evidence on a practical, case by
case, level. Admittedly, significant progress in the effective
implementation of mutual assistance obligations the world over can
be achieved through state action. Governments must enact the
relevant legislation, negotiate the necessary instruments and
establish some form of administrative framework, most critically, a
Central authority, for the processing of mutual assistance requests
and resources to implement requests.
But effective implementation is not limited to legislation and
administration. It runs far deeper than that. A country may have an
excellent legislative and treaty scheme for mutual assistance and
an established administrative process and it still may be virtually
impossible to provide effective assistance; because the best
designed system is only as good as the people who operate it on a
practical level. In many instances, success in mutual assistance is
dependent almost entirely on the knowledge and most critically -
the flexibility - of the authorities request and, even more
importantly, providing the assistance.
It is quite understandable that authorities raised within a
particular legal tradition have a natural bias for the approach and
practices of that legal tradition. As well, in providing foreign
states with access to compulsory process within a given state,
there will be, whether by virtue of constitutional or legislative
requirements, constraints on what measures are available and in
what circumstances.
However, one of the most important goals of mutual assistance is
the bridging of differences between legal systems. This goal can be
realized only if the authorities entrusted with execution, approach
mutual assistance requests with a view to overcoming the
differences and not entrenching them.
The governing philosophy for mutual assistance must be to
provide the widest scope of assistance possible and to provide that
assistance in a useable form for the requesting state. For mutual
assistance to succeed, the operative principle must be that
requests will be executed in accordance with the law of the
requested state and to the extent not prohibited by that law, will
be provided in the manner sought by the requesting state. In other
words, while authorities in a requested state must always meet the
standards prescribed by domestic law, unless the rendering of
assistance in the form sought would constitute a violation of that
law, it should be provided. If that principle does not govern at
the operational level, mutual assistance will fail. This is
unquestionably the central challenge that practitioners face each
day. The importance of this point is perhaps best illustrated by
example.
Generally in common law legal systems, police and prosecutors
are responsible for the questioning of witnesses. At the
investigative stage, police or, in some systems, prosecutors will
gather witness statements. During the trial process, it is the
prosecutor and defense counsel who will conduct the examination and
cross examination of each witness. While a judge may occasionally
ask a question during a trial, by the law of those states, judges
do not gather the evidence of witnesses nor conduct examinations
before the court. In contrast, many civil law systems have
investigating judges who will take witness statements and include
or summarize evidence in the preparation of their files or
"dossiers".
If an investigating Judge seeks to interview a witness in a
common law state, strictly speaking, it would be "inconsistent"
with the law of the requested state for that judge to conduct the
interview. It would not however be a violation of domestic law, if
the judge were allowed to conduct the interview. In this instance,
success or failure, depends entirely on whether the authorities in
the requested state allow the evidence to be gathered in an
appropriate form for the requesting state, even where it is
inconsistent with the normal process employed in the requested
state.
A similar example arises in the reverse scenario. In a civil law
system very often an investigating judge hearing a witness will
prepare a summary or "proces verbal" of what the witness said.
In the common law, when a witness is examined and cross -
examined before the court his or her evidence must be recorded
verbatim. A summary or "proces verbal" is not admissible.
If a request is made by common law authorities to take the
evidence of a witness on "commission" in the foreign state and to
record the evidence verbatim, once again that process would be
inconsistent with the practice of the requested state. However, the
foreign authorities would not be violating the law by allowing a
verbatim record. Again, it is a question of flexibility and the
philosophy employed in the requested state.
The need for flexibility is not limited to authorities called
upon to execute a request for assistance. Requesting authorities
too must strive to submit materials which will meet the
requirements of the requested state and which will be workable and
useful to authorities in a state of a different legal tradition.
Submitting a request which meets all of the requirements of the
domestic law of the requesting state but none in the requested
state does little to facilitate the provision of assistance.
While the proper choice in these examples may seem incredibly
obvious and simple, in reality, there are a multitude of examples
of instances where mutual assistance requests are frustrated
because of a rigid adherence by authorities to their own domestic
practices. Unless requesting and executing authorities, prosecutors
in particular, recognise and employ a flexible approach, mutual
assistance will fail.
b) Sufficient of
information
As in extradition, a great deal of the frustration in mutual
assistance flows from the differences between legal systems, with a
resulting lack of understanding as to what information must be
included in a request for assistance, in what detail and in what
form. Clearly, it is not possible to cover in any paper what each
system demands by way of information to support a request. However
some general recommendations are possible.
When faced with seeking assistance from a foreign state, the
obvious "first source" for a prosecutor to consider is any
applicable treaty or other instrument which should outline the
information to be included in the request. In the absence of a
treaty or often in addition to it, a prosecutor will want to
consult with the Central authority (if there is one) within his or
her own state. And finally, in many instances, only discussions
between authorities in the two states will produce adequate
information. Once again, for this the existence of Central
authorities within the two relevant states will greatly facilitate
the transmission of relevant information.
However, in addition to pursuing information on a case specific
basis, it is clear that future success is very much dependent on
the dissemination of information about legal systems generally and
communication and discussion between competent authorities in
states the world over. To this end, the IAP provides an excellent
opportunity for authorities in various states to discuss, at a
general level, their legal systems and the principles applicable to
and requirements for, requests for assistance to be effectively
executed.
Without attempting to address the substantive requirements of
legal systems, which will vary from one state to another, the
following are five basic general tips on the content of requests
that would appear to be applicable for all states:46
i) Non
system specific language
Every legal system has its own terminology. For example, an
"affidavit" may have meaning in Canada but not in Switzerland. As a
request for assistance is addressed to and intended for a foreign
authority, system specific terminology should be avoided. Instead
the request should describe what is sought, rather than referring
to a term. For example, rather than "affidavit", the request should
refer to a statement which is sworn or affirmed to by the person
providing it.
ii)
Relevance
While the test that must be met before a compulsory order will
issue can vary from state to state, in almost every legal system
the relevance of the evidence sought to the investigation or
prosecution will have to be established. Every request for
assistance therefore should address that issue. i.e. there should
be a clear description of why or how the evidence in question is
relevant to the investigation or prosecution.
iii)
Specificity
In most legal systems "fishing expeditions" are not permitted.
All requests for assistance should be specific as to the assistance
sought. For example, if the requesting authorities are seeking bank
information they will need to provide an indication, if not of a
specific bank account, at least sufficient information for the
relevant bank to be identified in the requested state. The type of
information needed from those accounts and the time period should
also be indicated.
iv) Form
of evidence
In preparing a request, prosecutors should focus not only on the
evidence sought but the form or manner in which the evidence must
be provided for it to be admissible at trial. Those requirements as
to form and procedure must be set out in detail in the request and
be included from the very beginning. For example, if a country
requests bank documents, it may be necessary to obtain an
accompanying certificate for the documents to be admitted at trial.
If that is the case, the certificate should be provided with the
request to avoid unnecessary duplication of work in the requested
state.
v) Time
constraints
Requests for assistance take time to execute. While urgent
situations and emergencies may arise, investigations and
prosecutors should strive to submit requests on a timely basis,
with reasonable deadlines that take into consideration the resource
constraints in a requested state.
6) Conclusion
Mutual assistance has come a long way in a very short period of
time for an instrument of international cooperation. The challenge
for the future lies in the effective implementation of the
instruments of cooperation which have been developed. The success
or failure of mutual assistance rests not only with governments but
with competent authorities, such as prosecutors, who seek and
render the assistance on a practical level.
IV PURSUING THE PROFITS - COOPERATION
IN THE RESTRAINT AND FORFEITURE OF PROCEEDS OF CRIME
1)General
It is a 20th century reality that crime is big business. Recent
estimates indicate that the illegal drug trade alone is a billion
dollar, black market industry. Unfortunately, many criminals
involved in lucrative, economic based crime have come to consider
prison sentences as simply a necessary cost of doing business.
In our modern world, to effectively combat any economic based
crime it is critical to attack that which motivates inPiduals to
commit the crime, - profit. To that end, cooperation in tracking,
restraining and forfeiting the proceeds of crime has become a major
component of international assistance.
While the concept of the state taking "ill gotten gains" away
from criminals has been, in some way, reflected in legal systems
for many years, the encouragement and development of a large scale,
internationally, recognized effort to remove proceeds of crime from
criminals is a relatively recent phenomenon.
2) Instruments and methods of cooperation
The most significant milestone for the advancement of
cooperation in this field was the negotiation and coming into force
of the 1988 Drug Convention.47 For the first time, pursuit
of the proceeds of criminal activity was given a "starring" role in
an international instrument intended to combat crime. The motive
behind the Convention measures which are directed at the restraint
and forfeiture of proceeds of crime are well described in the
preambular paragraphs to the Convention,
"...Aware that illicit traffic
generates large financial profits and wealth enabling transnational
criminal organisations to penetrate, contaminate and corrupt the
structures of government, legitimate commercial and financial
business and society at all its levels,
Determined to deprive persons engaged
in illicit traffic of the proceeds of their criminal activities and
thereby eliminate their main incentive for so doing, ...
The Convention obligates signatory states to, inter alia, create
domestically an offence for "money laundering"48 and, subject to
constitutional or other basic concepts of the applicable legal
system, to criminalize the knowing acquisition, possession or use
of property derived from the convention offences.
In addition and perhaps most significantly, the Convention
requires state parties to create domestic mechanisms which would
allow for the tracing, restraint (freeze or seize) and confiscation
of the proceeds of drug related crime. And, in recognition of the
transnational dimension of this criminal activity, state parties
also must be able to respond to requests presented by other states,
seeking the tracing, restraint and confiscation of the proceeds of
drug offences.
The latter requirement is critical because experience clearly
demonstrates that sophisticated criminal organizations launder and
distribute the proceeds of their activities, through many countries
and through a vast array of businesses, institutions and
organizations. The reality is that without the assistance of other
states, no country can successfully investigate, restrain and
confiscate the profits of a sophisticated criminal organisation. It
is not enough that each country has its discrete domestic scheme
for restraint and confiscation. There must be a developed network
for fast and effective international cooperation, which allows for
cross border restraint and confiscation. At the same time, that
process must respect the rights of inPiduals; those whose property
may be improperly restrained and innocent third parties. This area
of international cooperation presents perhaps the most significant
challenge for police and prosecutors the world over.
The 1988 Drug Convention marked the first recognition
internationally that any efforts to pursue the profits of crime,
requires the cooperation of states.
Other instruments have followed the adoption of the 1988 Drug
Convention. One of the most important is the 1990 Council of
Europe Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime.
This Convention, which establishes an elaborate scheme for
cooperation in tracing restraint and confiscation of proceeds, is
of particular note because it is a regime of cooperation which
applies to criminal offences generally which generate proceeds of
crime. It is not restricted to drug or any other particular type of
offence.
While not an actual instrument of cooperation, one final
noteworthy international document in the field of asset restraint
and forfeiture is the Forty recommendations of the Financial
Action Task Force on Money Laundering.
Established by the G7, the Financial Action Task Force on
Money Laundering (FATF) is an inter-governmental body whose
purpose is the development and promotion of policies to combat
money laundering.
The FATF currently consists of 26 countries and two
international organizations. Its membership includes the major
financial centre countries of Europe, North America and Asia. It is
a multi-disciplinary body, which brings together the policy-making
power of legal, financial and law enforcement experts. The
Recommendations of the task force, were originally drawn up in
1990. In 1996 the forty Recommendations were revised to take into
account the experience gained over the six-year period and to
reflect the changes which have occurred in the money-laundering
problem.
The recommendations address measures to be taken in the legal,
financial and administrative spheres and include a section focused
on the enhancement of mutual assistance, extradition and other
methods of cooperation in money laundering investigations. The
recommendations and their adoption and implementation in
participant states, have contributed significantly to increased
awareness and understanding of the issue of money laundering, as
well as improvement in the development of mechanisms for combating
the problem.
Because of the various innovative instruments, assistance in the
restraint and forfeiture of proceeds of crime, more than any other
form of cooperation, is most frequently rendered on the basis of
multilateral, as opposed to bilateral, agreement. In the
implementation of both the widely accepted 1988 Drug
Convention and the European Convention many states have
created domestic regimes for restraint and forfeiture which apply
to the proceeds of both foreign and domestic offences. That is,
proceeds of criminal activity located in a state will be subject to
restraint and confiscation even if the underlying or "predicate"
offence, through the profits were generated took place
elsewhere.
For this reason, often assistance in restraint and forfeiture
can be obtained simply by relaying intelligence, information and
ultimately requisite evidence about the existence of potential
proceeds of crime within another state, through informal police or
other channels, for domestic use and action.
In addition, many countries have made assistance with the
restraint and forfeiture of proceeds of crime, a component; in some
instances a central component, of their mutual assistance treaties.
Thus, there also exist bilateral instruments which provide a basis
for cooperation between states in the restraint and forfeiture of
proceeds of crime.
In many ways while cooperation in "proceeds matters" is the
newest form of international cooperation, the network upon which
such assistance is rendered is much more complete than any
other.
3) Practical issues for prosecutors
At the same time, international cooperation in tracing,
restraining and confiscating the proceeds of crime is the area most
replete with difficult legal and practical questions and the one
which poses the greatest challenge, particularly for prosecutors
who must bring these cases before the courts.
As the newest form of international cooperation, it remains a
relatively unknown concept even amongst the authorities who may, be
called upon to respond to requests for assistance. Many police and
prosecutors are simply unfamiliar with and unaccustomed to the
restraint and forfeiture of property and assets. This makes the
pursuit and rendering of assistance both difficult and time
consuming.
What makes this form of assistance incredibly complex is the
Persity of schemes; no two states have adopted the same legislative
scheme for restraint and forfeiture. There are a wide range of
general approaches and each country has a different "twist" to its
scheme.
A few examples can illustrate the maze that must be navigated in
seeking assistance.
One central distinction is whether the forfeiture of proceeds of
crime can be accomplished through civil or administrative process
or is inextricably tied to the criminal process. Canada for example
has a criminal forfeiture process where criminal charges underlie
an application for a forfeiture order.49 In contrast, in the
United States, there are a range of forfeiture options from non
judicial (summary and administrative) to civil and criminal
process.50
Another important distinction is whether forfeiture orders are
directed to specific assets or are "value" based or both. For
example, in Australia51 a court can order the forfeiture of
specific property which is determined to be "tainted" property in
relation to the offence or impose a general "pecuniary" penalty
which represents the benefits attained by the person from the
commission of the offence. In Canada, the court can order the
confiscation of specific property found to constitute the proceeds
of crime or a fine in Iieu if the property is for various reasons
no longer available, but the concept of a "pecuniary penalty" does
not exist.52
In addition to the variation in domestic systems, countries also
take different approaches to foreign requests for assistance with
restraint and forfeiture.
In some states there is a separate scheme for the enforcement of
foreign requests for restraint and forfeiture e.g. Australia.53 In
other countries domestic process is used to respond to foreign
requests e.g. Canada. Other states have a blended approach e.g. the
United States,54 which has a similar process for
domestic and foreign forfeiture proceedings but with evidentiary
rules that allow for enhanced use of foreign evidence, such as
certificates of conviction.
The proliferation of approaches to the restraint and forfeiture
of proceeds of crime make this growing area of cooperation the most
complex. Because of those complexities, cooperation in the
restraint and forfeiture of proceeds, in and of itself, merits
consideration as a single topic. Here, it is only possible and of
itself, merits consideration as a single topic. Here, it is only
possible to touch on a few of the pressing current issues in
international cooperation in the restraint and forfeiture of
proceeds of crime; particularly those which are of most relevance
to prosecutors.
a) Mixed funds
The 1988 Drug Convention must be recognised as one of the
most important international instruments in the advancement of
cooperation 'M criminal matters. However it has had a few
unintended side effects.
Perhaps the most notable is that many, states moved quickly to
enact domestic proceeds legislation to comply with the obligations
of the convention, but in doing so, the legislation was directed
only to the restraint and forfeiture of proceeds of drug
offences.
Unfortunately, many criminals are multi-disciplinary by nature.
They easily fluctuate between trafficking in drugs, carrying out
fraudulent schemes and trafficking in other substances from aims to
cigarettes. Their only goal is profit and the path to it will vary.
This is particularly the case with sophisticated criminal
organisations. Proceeds legislation which is directed solely to
drug offences, while certainly an important achievement, can be of
limited effectiveness in the face of multi - faceted criminal
organisations.
Thus, prosecutors are often not adequately armed to attack the
varied proceeds of a criminal organisation. A prosecutor will seek
to restrain the proceeds of a criminal organisation and face
legislation either domestically or in a foreign state that will
only allow for action to be taken in relation to drug proceeds.
This will be a particular frustration when domestic legislation in
the requesting state has a multitude of predicate offences and thus
the investigation conducted has not focused on establishing the
connection to inPidual types of criminal activity such as drug
trafficking. When the police and prosecutors then seek restraint of
assets in a foreign state, with legislation limited to drug
trafficking, it will be particularly difficult to obtain any
assistance, even though a good portion of the profits may have been
generated through drug offences.
While the long range solution to this issue is a legislative
one, in the interim, it falls to prosecutors to work together to
try and find innovative solutions, such as to development of
statutes which include property or funds which flow from drugs and
other demonstrably illegal activity.
b) Sufficiency of
evidence
The second problem parallels that encountered in extradition and
mutual assistance but is probably most acute in relation to
proceeds of crime, given the myriad of approaches in domestic
legislation. That of course is how to provide the foreign state
with sufficient information, in an acceptable form, to allow for
restraint and ultimately forfeiture.
In addition to the broader conceptual differences in approaches
outlined above, prosecutors seeking assistance face a multitude of
procedural variations as well. In some legal systems, before a
state will seek the restraint of assets, it will require the
requesting state to produce evidence sufficient to establish a
direct link between the alleged or proven underlying offence and
the property in question. Other systems will accept a description
of that evidence and still others a simple summary of the
connection, without reference to available evidence.
Still other legal systems do not require a direct link between
an offence and the impugned property. All that may be required is a
description of the alleged offence and the connection of the person
to the impugned property, with or without an indication that the
person does not appear to have any source of legitimate income.
The variations are endless as is the frustration for police and
prosecutors.
Once again, success can only be achieved if prosecutors can
effectively communicate information about their standards and
procedures and can guide each other through the maze.
c) Tracking proceeds
Unquestionably, pursuit of proceeds of crime is an area of
international cooperation which is most impacted by the startling
advances in technology in our modern times. We live in an age where
the transfer of millions of dollars, across national borders, can
occur in an instant. Traditional domestic investigative techniques,
let alone those used in the context of international cooperation,
cannot begin to adequately address tracking and gathering evidence
of modern financial and economic interaction.
Unquestionably, the challenge for the future is to develop a
system of cooperation amongst states which, at a practical level,
will permit investigators to track and prosecutors to evidence, the
flow of funds in the electronic world of the future.
V CONCLUSION
There can be no illusions about international cooperation in
criminal matters. The criminals are far more skilled in using
national borders to protect themselves and the evidence and profits
of their crime from detection than law enforcement is in overcoming
the barriers of sovereignty, in pursuing them.
But if one considers where we have been and where we have come
in cooperation matters in the last fifty years, there is much
reason to be optimistic. There should be no doubt, that with the
continued efforts of the world community, its effectiveness in
combating transnational crime will continue to increase, as will
the security of our global village.
1 This
text has been written in 1998 before the entry in force of the 2000
Mutual Legal Assistance Act reform. Ms. Prost was then Senior
Counsel, Director, International Assistance group, Department of
Justice, Canada.
2
United States of America v. Controni (1989) 48 C.C.C. (3d) 193
at 215
3 A.W.
LaForest, Extradition to and from Canada, 1991
4 M
Cherif Bassioun, International Extradition, United States Law and
Practice
5 Supra
ftnote. 4 at p. 3
6 See
for example: Recommendations of the P8 Senior Experts Working Group
on combating Transnational Organised Crime; Report of the
Intergovernmental Expert Group on Extradition, Siracusa, 10-13
December 1996 as presented to the Commission on Crime Prevention
and Criminal Justice, Sixth Session, Vienna, 28 April -- 9 May
1997; Resolution of the Ninth Congress on the Prevention of Crime
and the Treatment of Offenders A/Conf.169/16, para 1)
7
Shearer, I.A., Extradition in International Law, Manchester
University Press, 1971, at p. 24.
8 Supra
ftnore. 7 at pp. 2835.
9 Europ.
T.S. No. 24, December 12, 1957: Second Additional Protocol, Mar.
17, 1978, Europ. T.S. No. 98; First Additional Protocol, Oct. 15,
Europ. T.S. 86.
10
Scheme Relating to the Rendition of Fugitive Offenders within the
Commonwealth, 1966, Cmnd 3008, at 1
11
See An Act for the Better Apprehension of Certain Offenders, 1843,
6 & 7 Vict. ch. 34
12
See Fugitive Offenders Act, 1881, 44 & 45 Vict. ch. 69
13
Commonwealth Schemes on Mutual Assistance in the Administration of
Justice, June 1991, Commonwealth Secretariat.
14
Supra ftnote 4, at pp. 14-15; Supra ftnote 7, at pp.61-62
15
See Bart de Schutter, International Criminal Law in Evolution:
Mutual Assistance in Criminal Matters Between the Benelux
Countries, 14 Neth. J. Int'l Law. 382, 382-410
16
Supra ftnote 4, at p.12
17
Supra ftnote 4, at p.15
18
Supra ftnote 4, at p.15
19
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in the Armed Forces in the Field, 12 August 1949,
6 U S T 3114. Geneva Convention for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, 12 August 1949, 6 U S T
3217. Geneva Convention Relative to the
Treatment of Prisoners of War, 12 August 1949, 6 U S T
3316. Geneva Convention Relation to the
Protection of Civilian Persons in Time of War, 12 August 1949, 6 U
S T 3516
20
Convention on the Prevention and Punishment of the Crime of
Genocide, 9 December, 1948 78 U N T S 277.
21 16
December 1970
22
See example: Convention on the Prevention and Punishment of Crimes
Against Internationally Protected Persons, Including Diplomatic
Agents, 14 December 1973, 13 I.L.M 41 (1974), International
Convention Against the Taking of Hostages, 18 December 1979, 18
I.L.M. 1456 (1979); Convention Against torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 7 December 1984, 23
I.L.M. 1027 (1984)
23 19
December 1988, 28 I.L.M. 493 (1989)
24
RSC 1985, c.E-23 as amended; RSC 1985, c F-32 a amended
25
Alun Jones, Jones on Extradition, London, Sweet and Maxwell, 1995,
Ch. 4
26
Report of the Inter-governmental Expert Group on Extradition,
Siracusa, 10-13 December 1996 as presented to the Commission on
Crime Prevention and Criminal Justice, Sixth Session, Vienna, 28
April -- 9 May 1977
27
UNGA res 45.116
28
International Review of Criminal Policy, Nos. 45 and 46.
29
See for example article 2 of the United Nations Model Treaty on
Extradition
30
See for example Australia and the United Kingdom
31
See United States
32
See for example Article 4 (a) of the United Nations Model Treaty on
Extradition
33
Supra ftnote 20 para 19
34
e.g. The temporary transfer of a person for trial only
35
See Supra ftnote 20; Recommendations of the P8 Senior Experts
Working Group on combating Transnational Organised Crime.
36
Often referred to as Mutual Legal Assistance.
37 In
some countries, mutual assistance is provided for on the basis of
domestic legislation which is either applied generally to all
states or to designated states on the basis of reciprocity. See for
example UK, Switzerland some states also provide for case by case
assistance through administrative arrangement. See Canada
38
European treaty Series No. 30
39
Scheme Relating to Mutual Assistance in Criminal Matters within the
Commonwealth, Commonwealth Secretariat, London, LMN (86) 13
40
Lionel Frei and Stefan Freschal, Origins and application of the
United States -- Switzerland Treaty on Mutual Assistance in
Criminal Matters, Harvard International Law Journal 31 (1990 @
77-79
41
Canada Gazette, Part I, p. 2483 (Vol. 130, No. 35)
42
Signed July, 1992
43
General Assembly resolution 45/117, UN GAOR 45th Sess.,
Supp No. 49A at 215
44
Supra ftnote 23
45
See Naples Political Declaration and Global Action Plan" adopted at
the World Ministerial Conference on Organised Transnational Crime,
November 1994; Report of the Oxford Conference on Mutual Legal
Assistance, September 1994, Christ Church, Oxford; Recommendations
of the P8 Senior Experts Working Group on combating Transnational
Organised Crime.
46
See also United Nations Manual for the Model Treaty on Mutual
Assistance in Criminal Matters, International Review of Criminal
Policy, Nos. 45 and 46, p, 41
47
Supra ftnote 23.
48
The conversion or transfer of property, knowing that such property
is derived from any offence or offences established in accordance
with sub-paragraph (a) of this paragraph, or from an act of
participation in such offence or offences, for the purpose of
concealing or disguising the illicit origin of the property or of
assisting any person who is involved in the commission of such an
offence or offences to evade the legal consequences of his
actions.
49
Criminal Code, RSC Ch 46. ss 462.3 -- 462.5
50
Asset Forfeiture Manual, U S Department of Justice
51
Proceeds of Crime Act, 1987
52
Supra ftnote 49
53
Supra ftnote 51
54
Supra ftnote 50
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